So, you thought you had it bad filing a claim. Pity the poor, overworked VA. They are inundated in work, have been for years and now find themselves being persecuted for same. In our travels in pursuit of why this is, we came across an interesting case brought by a National Veterans outfit in conjunction with a California one. They lost most of their demands at the district court level as the Judge felt he had no standing to order the VA about. The 9^th Circuit, being a Federal Circuit Court, has no illusions about their enumerated powers however. They proceeded to demolish the VA and order it to begin complying with the Veterans complaints. While this began as a case to help PTSD Vets and speed up the claims process, it mushroomed and now has the VA thinking of appealing to the Supreme Court.

     What interested us were the findings of the district court in 2008. These facts are stale and 3 years old now but illustrate how far behind VA actually is in the claims process. Remember also that the VA has now added new diseases to the AO family and caused another stampede to the claims trough. This will increase the backlog and frustrate Vets further. At this time there is no relief in sight other than the usual mea culpas about how each claim is unique and must be carefully examined to ensure accuracy. I will list some facts that may cause dismay and angst among Vet claimants everywhere. This problem is not indigenous to one RO- it encompasses all 57. We may see the Courts overrule the VA and put the process in other’s hands to cure the backlog. Think judicial activism on a scale akin to Court-ordered busing of minority school children when they felt the states were loathe to comply with orders and directives mandating integration. 

FACTS ABOUT THE VBA( VETERANS BENEFITS ADMINISTRATION)

AND VHA (VETERANS HEALTH ADMINISTRATION) 

     There are approximately 25 million Veterans alive as we speak. Of them, almost 8 million are served by the VA medical system (VHA). Of the 25 million, almost 3 million are service-connected for injuries/diseases incurred in the service of our country (2008).

     The VA supplies health care via 153 VAMCs ,  approximately 800 Community-Based Outpatient Clinics (CBOCs) and 200 “Readjustment Centers” ( Vet centers) throughout the U.S., the Philippines, and Puerto Rico. Most Vets receive their care from the CBOCs, but VA has no provisions for treatment of PTSD at these smaller clinics. Ruh-oh, Rorge.  What would you suppose is the most prevalent problem afflicting recently discharged Vets hundreds of miles away from VAMCs?  Approximately one out of three servicemen returning from duty in SWA suffers from mental health issues. 

     We could certainly go on for hours about that subject, but that is not the focus of this dissertation. The VBA is the source of our concern today. The VBA, as its name implies, is responsible for benefits programs, including pensions and disability /death compensation claims. Do not confuse it with the VHA.

      The following facts you may find informative. Currently, (2011), 3.4 million of us receive benefits. The district court found that some of us are educationally challenged and often find it difficult to navigate the maze to obtain benefits without substantial third party assistance. This is the least of our worries. We are not allowed to involve a lawyer or other professional who charges monies to obtain justice at the RO level. We can only resort to this ploy after we have been denied and appeal. Therefore we are condemned to using the VSO system or defending ourselves pro se until such time as we are finally allowed to appeal to the BVA. This is an interesting fact that VA is remarkably silent on. Consider also the following in no particular order. 

The current waiting time for a C&P exam is 35 days (2008). 

Even if you have been diagnosed with a disease/injury at a VAMC or CBOC, you must still go through a C&P when filing a claim. 

Approximately 88% of all claims are at least partially granted. This interesting factoid is very misleading. A rating of 0% for hearing loss is as equally weighted as a temporary award of funds for Vocational Rehabilitation.  Actual ratings awards of any substance continue to be denied fairly regularly and those awarded are usually lowballed to an insignificant percentage so as to be initially incompatible with the actual progression of the disease/injury. This, in turn, provokes an additional NOD (or appeal) to obtain a realistic rating commensurate with the injury.

During the pendancy of a Veteran’s claim to the RO, he is statutorily barred from paying a lawyer to represent him (38 USC § 5904). 

If a Veteran disagrees with a rating decision by the RO, he may appeal-thus embarking on a path that will delay his receipt of benefits for many years. We all know this. I am simply stating it for the record. 

More than 830,000 claims are filed with ROs every year (again, 2008 statistics).

On April 12^th, 2008 there were 400,450 claims outstanding awaiting adjudication. Imagine what the latest deluge of new Agent Orange and Afgan/Iraqi war claims has done to inflate that figure. 

11% of all claims lead to the filing of a NOD. A lot of Vets apparently walk away from this process upon initial denial. It in no way reflects on whether the claim(s) have merit. It is born of disillusionment with the interminable delays in the process. Perhaps after a year of waiting and subsequently finding oneself destitute and homeless, the prospect of waiting another 3-4 years for justice might seem futile in some Vets’ minds.

Only 4% of all ratings claims proceed to an appeal before the BVA. Appalling but true. 

Throughout your appeal process, you are faced with time limits and constraints, the failure of which to timely follow can result in forfeiture of your claim rights. In contrast, the VA is not subject to any statutory or regulatory time limits at any phase of the process.   

VBA’s stated goal is to “process” all initial claims for benefits within 125 days. Reality reveals 182 days is average with 101,019 claims pending for over 180 days (again-2008 statistics). 

From the filing of a NOD, it takes 261 days to issue a SOC. In some cases Vets have waited in excess of 1000 days (Yep. 2008 statistics).

After receipt of the SOC, the average delay for filing a Form 9 by the Vet or his designated representative is 43 days. 

The average delay for the RO just to certify the Vets appeal averages 543 days. This is purely a ministerial function and requires little to accomplish. Some Vets have experienced delays up to 1000 days for the VARO to accomplish this collation of your file and attach a Form 8. This does not include the transmission of the C-file via snail mail to Washington, D.C. 

Veterans who forgo a DRO review and take the traditional route to an appeal wait an average of 336 days for BVA to issue a decision on their appeal. If you decide to have a hearing before the BVA judge this will compound the delay an additional 455 days beyond the 336 mentioned above for an average aggregate total of 791 days. That’s slightly over two years according to VA’s calculations.  I assume they are referring to the planet Mercury’s calendar. 

From inception of claim to adjudication by the BVA reveals an average of 4 years and 5 months assuming no remands, readjudications, DRO reviews, or other roadblocks to a simple up or down decision (2008). This does not include any time between denial of the initial claim and filing of the NOD (up to one year permitted). 

Bradley Mayes, Director of the C&P Services at the VBA testified under oath that he had not “made a concerted effort to figure out what was causing” the extraordinary delays in the claims process. James Terry, Chairman of the BVA was equally unable to explain the inherently long and interminably slow Appeals process in his bailiwick. 

The Federal Circuit court found “The record before the district court suggests that errors made by ratings specialists at the Regional Office level play a significant role in the lengthily delays that veterans experience in the adjudication of their claims”. (emphasis mine) 

On average, the BVA affirms a RO decision 40% of the time, grants the appeal 20% of the time and remands the case back to the RO 40% of the time. Between 19 and 44% of these remands are so-called “avoidable remands” defined as occurring when “an error is made by the RO before it is certified to the Board”. (emphasis mine) 

The district court found that almost half of the “avoidable remands” were caused by failure of RO employees in their duty to assist veterans just between January 1 to March 31, 2008 alone. 

75% of claims remanded to the RO by the BVA are appealed back up to the BVA a second time. 

It takes the BVA an average of 149 days to readjudicate a remanded claim once it is received back at the BVA. Transmission of the claim back to the BVA from the RO is not included in this number.

It takes the RO an average of 499.1 days to grant or deny a remanded claim or to return it once again to the BVA. Remanded PTSD claims require an average of 563.9 days. 

     I will let Veterans draw their own conclusions as to how or what the VA is doing to spruce up these statistics. The habit of addressing the pig with a simple lipstick makeover in order to conceal its lineage doesn’t seem to work anymore. That seems to be the consensus of an en banc review of this case by the 9^th Fed. Cir.  As I stressed numerous times, these are 2008 statistics and do not reflect the reality of 2011. They are taken directly from the filed case decision. I am not embellishing anything and the facts can be cross-checked in the event anyone thinks I am stretching the truth or inflating the numbers. Please also consider this an FYI and not a rant. Venting one’s displeasure with the process does not resolve the underlying problem. Voting does. 

     I apologize in advance for any run on sentences, misuse of tense, misspellings or dangling participles. Every effort was made towards brevity as well, but the laundry list of mistakes or inequities is quite lengthy.